The Leadership Conference on Civil and Human Rights

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Broad Coalition Urges Congress to Reject Consent Decree Bill

Civil rights and other groups have opposed a bill introduced by Senator Lamar Alexander, R. Tenn. and Rep. Roy Blunt, R. Mo., which would limit both the lifespan and scope of consent decrees against state and local governments.

The bill, the Federal Consent Decree Fairness Act (S. 489/H.R. 1229), allows a state or local government to ask a court to modify or vacate a consent decree (a voluntary agreement between two parties to a lawsuit) four years after the decree is entered (or even sooner after the election of a new state or local official).

It gives a court 90 days to rule on any motion to vacate a consent decree, or the decree will lapse.

Supporters claim that that the bill will give states relief from the burdens that federal consent decrees may place on state governments, particularly with respect to their ability to manage Medicaid programs.

Opponents of the bill point out that consent decrees are voluntarily entered into by government officials. They also argue that the bill purports to fix a problem that does not exist, since existing federal law already permits the modification and dissolution of consent decrees. If the legislation were passed, it would eviscerate one of the most important civil rights enforcement tools available, critics say.

Bill opponents also say that the proposed legislation would affect a wide range of litigation, including most litigation brought by the U.S. Department of Justice against state and local governments, as well as litigation brought by private parties.

Examples of consent decrees that could dissolve if the bill were to be enacted include U.S. v. City of Los Angeles, involving a Justice Department investigation of allegedly widespread police corruption; U.S. v. Mercer County, NJ, involving alleged gross violations of the standards of care and responsibility expected for those caring for the elderly and persons with disabilities; and U.S. and League of Women Voters of New Orleans, et al. v. Sewerage & Water Board of New Orleans, et al., involving a suit by the Justice Department under the Clean Water Act for modernization of an antiquated sewage collection system that spewed raw sewage onto city streets.

Opponents also point out that the Supreme Court has unanimously endorsed standards for administering consent decrees, which the bill now seeks to overturn.

According to Wade Henderson, executive director of the Leadership Conference on Civil Rights (LCCR), consent decrees help level the playing field.

"The people that we often represent don't have access as a general matter to the courts; don't have access to the corridors of power; and don't have the resources needed to make that work. And, therefore, we as a community rely on consent decrees to advance a common agenda," Henderson said.

A hearing on this legislation was held June 21 in the House Judiciary Subcommittee on Courts, the Internet and Intellectual Property. Majority Whip Roy Blunt, the bill's lead sponsor, testified before the subcommittee; the Honorable Nathaniel R. Jones, retired judge from the U.S. Court of Appeals for the Sixth Circuit, testified in opposition.

On July 19, the Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing on "A Review of Federal Consent Decrees."  

Sen. Alexander testified in support of the bill.   Testifying in opposition to the bill, Judge Nathaniel Jones said his decades of experience as both a judge and a litigator led him to "the unavoidable conclusion that S. 489 is nothing less than a wrecking ball being applied to a judicial process that has been invaluable in resolving very knotty and contentious legal problems."

Lois Schiffer, former Assistant Attorney General in charge of the Environment and Natural Resources Division in the United States Department of Justice, testified that she had approved and signed hundreds of environmental consent decrees, personally negotiating many of them. She testified that the bill was "fatally flawed" and "a giant step backward for clean air, water, and land in this country" in that it would "effectively eliminate altogether the use of consent decrees for environmental problems, and disable an essential component of enforcing and implementing all our environmental laws."

Tim Jost, a nationally recognized health care expert, addressed one of the driving forces behind the bill, namely, the situation that has developed with the Medicaid program in Sen. Alexander's home state of Tennessee, which is currently bound by four consent decrees.  Because states are not in fact unduly constrained by the federal Medicaid law, the bill, he said, is "both impractical and bad public policy."

LCCR is coordinating a coalition of more than 80 national, state and local organizations in opposition to the bill.